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Smart conversation from the National Constitution CenterFri, 09 Dec 2016 12:06:03 +0000en-UShourly1http://wordpress.org/?v=4.2.10How Americans fought to restore Veterans Day to Novemberhttp://blog.constitutioncenter.org/2016/11/how-americans-fought-to-restore-veterans-day-to-november/
http://blog.constitutioncenter.org/2016/11/how-americans-fought-to-restore-veterans-day-to-november/#respondFri, 11 Nov 2016 10:15:08 +0000http://blog.constitutioncenter.org/?p=29597This Friday, millions of Americans will take time out to honor our military on the traditional time of 11:11 a.m. on November 11. But there was a time when Congress tried to move the holiday, only to face several years of strong public resistance.

You may recall from history or civics class that the holiday was first called Armistice Day. It was established after World War I to remember the “war to end all wars,” and it was pegged to the time that a cease-fire, or armistice, that occurred in Europe on November 11, 1918. (World War I officially ended when the Treaty of Versailles was signed on June 28, 1919 in France.)

A year later, President Woodrow Wilson said the armistice anniversary deserved recognition.

“To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations,” he said.

Armistice Day officially received its name through a congressional resolution that was passed on June 4, 1926. By that time, 27 states had made Armistice Day a legal holiday.

Then, in 1938, Armistice Day officially became a national holiday by law, when an act was passed on May 13, 1938, made November 11 in each year a legal holiday: “a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as “Armistice Day.”

After World War II, the act was amended to honor veterans of World War II and Korea, and the name of the holiday was changed to Veterans Day in 1954. President Dwight D. Eisenhower marked the occasion with a special proclamation.

However, controversy came to the universally recognized holiday in 1968, when Congress tried to change when Veterans Day was celebrated as a national holiday, by moving the holiday to a Monday at the end of October.

The Uniform Monday Holiday Act was signed on June 28, 1968, and it changed the traditional days for Washington’s Birthday, Memorial Day, Veterans Day, and Columbus Day, to ensure that the holidays fell on a Monday, giving federal employees a three-day weekend.

The bill moved Veterans Day, at least on a federal level, to the last Monday in October, with the first observance of the new date in 1971. Veterans groups moved quickly to oppose the date switch, and two states refused to switch their dates in 1971. By 1974, there was confusion over the two dates and most states took a pass on commemorating the holiday in October.

In a typical editorial of the era, the Weirton, West Virginia Daily Times explained why the holiday switch wasn’t working. “Congress has no choice now but to enact legislation restoring Nov 11 as Veterans Day. The majority of the states have spoken and the Congress should heed their preference. There’s too much confusion over the two dates,” says an editorial from October 28, 1974. “All veterans organizations retain the original date.”

A few months after that editorial ran, 46 of the 50 states decided to ignore the federal celebration in October, by either switching back to November 11 or refusing to change the holiday. By the middle of 1975, Congress had seen enough, and it amended the Uniform Monday Holiday Act to move Veterans Day back to November 11. President Gerald Ford signed the act on September 20, 1975, which called for the move to happen in 1978.

That November, the Carroll Daily Times Herald in Iowa said it was about time Congress did the right thing. “[Veterans] deserve to be honored on their special day, not as an adjunct to a weekend holiday as Washington tried to force on us,” the newspaper commented.

Scott Bomboy is the editor in chief of the National Constitution Center.

]]>http://blog.constitutioncenter.org/2016/11/how-americans-fought-to-restore-veterans-day-to-november/feed/0U.S. opposes delay of North Carolina voting rights rulinghttp://blog.constitutioncenter.org/2016/08/u-s-opposes-delay-of-north-carolina-voting-rights-ruling/
http://blog.constitutioncenter.org/2016/08/u-s-opposes-delay-of-north-carolina-voting-rights-ruling/#respondFri, 26 Aug 2016 10:27:51 +0000http://blog.constitutioncenter.org/?p=44470Arguing that North Carolina officials are well on their way toward fully carrying out a federal appeals court ruling that nullified five state restrictions on voting rights, the Obama administration and advocacy groups urged the Supreme Court on Thursday to leave the lower court ruling intact.

The state of North Carolina has asked the Justices to suspend a ruling on July 29 by the U.S. Court of Appeals for the Fourth Circuit. That ruling said the state legislature deliberately targeted voting practices used most often by blacks to stem the rising political clout of minority citizens. Among the tougher restrictions were those that took away the kinds of ID that blacks might be more likely to have.

It is uncertain, at this point, whether the state will be able to gain the necessary votes of five Justices to postpone the Circuit Court ruling. With an eight-member Court, even if all four of the more conservative Justices voted for a delay, there would still have to be a fifth vote from among the Court’s four more liberal members.

But the Circuit Court ruling’s finding of intentional race bias in the state legislature’s passage of the photo ID requirement and other mandates for voters would be likely to deter any of the Justices in that bloc from allowing the restrictions go back into effect.

Working against support for the state from perhaps any of the Justices is the fact — prominently emphasized by the new briefs filed Thursday — that lawyers for North Carolina had told the Circuit Court that they would be able to implement any order on voting procedures in time for the November elections, so long as it emerged by the end of July — as the Circuit Court ruling did.

Both the administration’s brief (found here) and the separate brief of civil rights and voting rights groups (found here) contended that it would only introduce new confusion among North Carolina voters if the appeals court decision were now put on hold. The advocacy groups’ brief spelled out the details of a series of steps that state and county officials already have taken to implement the Circuit Court ruling.

For example, that brief noted that officials in 99 out of the state’s 100 counties have made arrangements to have a 17-day early voting period, instead of the ten-day period the state law would have permitted. Blacks are active users of early voting opportunities. The brief also noted that state officials have already held a two-day training session for voting officials, and have sent out mailings to alert officials of what the Circuit Court ruling requires, with assurances of its implementation.

Both briefs dispute the state’s argument that the Circuit Court ruling adopted a new standard of intentional race bias in voting that would endanger photo ID laws across the nation. The North Carolina law, the two new briefs contended, goes further than any of the other laws to curtail voting by blacks. (The state’s argument on the discriminatory intent standard did draw the support, in an amicus brief filed by two conservative advocacy groups — Judicial Watch and the Allied Educational Foundation. That brief is here. It asserted that the standard set by the Circuit Court will imperil many voting laws across America.)

Both of the new briefs for the challengers to the North Carolina law contended that the Supreme Court did not settle the legality of laws like North Carolina’s when, eight years ago, it upheld a photo ID law in Indiana. That case did not involve any claim of intentional race bias, the challengers said.

Neither brief responded directly to the argument of the state’s lawyers that the Supreme Court itself had encouraged states to adopt new voting regulations when it lifted federal controls on some states power to pass voting laws in the 2013 decision in Shelby County v. Holder, nullifying a key provision of the 1965 Voting Rights Act.

The Obama administration brief, overall, was focused on specific legal arguments for keeping the Circuit Court ruling intact, while the advocacy groups’ brief put heavier stress on what North Carolina itself is doing to carry out that decision.

There is no timetable for the Supreme Court to act on North Carolina’s plea, although the need for state officials to know what is required of them becomes more pressing as time passes in the remaining weeks before the November 8 election — especially, with the start of early voting.

North Carolina may have an opportunity to file a reply brief before the Court acts.

The state’s lawyers, besides asking that the Court put the Fourth Circuit Court ruling on hold until the state can file a petition for review, also asked the Justices to consider turning the pending application into a petition for review, and going ahead to grant it. Neither of the new briefs responded to that suggestion, but both did say there are no realistic chances that the Court would grant review when a petition is filed.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.

Following ratification of the 15th Amendment in 1860, many states used poll taxes, literacy tests, and other means to prevent newly freed African Americans and other minorities from voting. A century later, the Voting Rights Act of 1965 provided a variety of ways for the federal government and the federal courts to ensure that the right to vote was not denied on the basis of race.

In 2013, the Supreme Court ruled unconstitutional Congress’ formula for determining which states needed federal approval for election law changes. After the Court’s ruling in Shelby County v. Holder, more than 18 states made changes to their election procedures. Many of those changes have been challenged, leading to a recent series of high-profile decisions in the federal courts.

Joining We the People to discuss voting rights are two leading experts on the front lines of the debate.

Hans von Spakovsky is Manager of the Election Law Reform Initiative and Senior Legal Fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Wendy Weiser is Director of the Democracy Program at the Brennan Center for Justice at the New York University School of Law.

Attention, We the People listeners!

On Wednesday, August 24, at 1:00pm ET, live on Facebook, Jeffrey Rosen, president and CEO of the National Constitution Center and host of We the People, will answer your questions about different tools and approaches for constitutional interpretation. You can submit questions in advance on social media using #AskJeffNCC or anonymously on Constitution Daily. And don’t forget to join Jeff live on August 24 to be a part of the conversation.

This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Josh Waimberg and Tom Donnelly. The host of We the People is Jeffrey Rosen. Many thanks and best wishes to Danieli Evans, who leaves the Center this month.

Get the latest constitutional news, and continue the conversation, on Facebook and Twitter.

We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm.

Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

As part of a continuing series this summer, Constitution Daily looks at Vice Presidential selections that had an impact on the Constitution. Today, the Vice President who famously argued for state nullification of federal laws: John C. Calhoun.

History has dubbed Henry Clay, Daniel Webster and John Calhoun “the great triumvirate” and “the immortal trio,” the congressional powerhouses of the era between the Founding and the Civil War. However, individual legacies were blurred at the expense of this clique. Calhoun was, after all, the vice president to both John Quincy Adams and Andrew Jackson, a feat shared only by George Clinton (who served under both Jefferson and Madison). Calhoun lived a political life all of his own, full (and constitutionally suspect) even without history’s forging ties to Clay and Webster.

John Caldwell Calhoun was born on March 18, 1782, in South Carolina. The frontier community from which he hailed was largely one of Scotch-Irish settlers having emigrated from County Donegal. Calhoun was raised in a strictly Calvinist household, his family’s Presbyterianism often pitted against the religious elite of Charleston. Though he once declared, “Life is a struggle against evil,” there is little reason to believe Calhoun was particularly religious in later life.

Calhoun’s father Patrick was a fiery patriot who fought in the American Revolution and often against Native Americans in the back country. From his father, Calhoun inherited both a love of a country and an affinity for state’s rights. Jeffersonian in his views, Patrick Calhoun went as far as to not endorse the ratification of the Constitution. His son, however, would use the Constitution as his best defense of state nullification.

Calhoun attended Yale where he excelled and participated in the Brothers of Unity, a debating society. He went on to pursue law at Tapping Reeve Law School and was admitted to the South Carolina bar in 1807. He married his first-cousin-once-removed, Floride Bonneau Calhoun, in 1811. Entrenched in the “establishment” Calhoun’s father had so detested, Floride Calhoun was the daughter of U.S. Senator John E. Calhoun. Perhaps it was his wife, then, who gave Calhoun the “legitimacy” to enter the House of Representatives the same year the two were married.

However, Floride Calhoun’s main legacy may be found in her role in the Petticoat Affair of 1830-1831. The Petticoat Affair was just what it claimed to be: petty. Floride Calhoun organized Cabinet Wives to exclude Peggy Eaton, wife to Andrew Jackson’s secretary of war, from social life in the capital on account of alleged adulterous behavior. Jackson was no stranger to mudslinging, in his first presidential election specifically (his marriage to wife Rachel, a divorcee, was subject to antagonizing question and coverage) and sided with the Eaton’s. Martin Van Buren, a widower, had no stake in the drama manufactured by cabinet wives. He sided with Jackson and Eaton, as well, essentially guaranteeing himself Calhoun’s vice presidential role in the later Jackson administration.

Long before this political episode, however, Calhoun was just a young congressman calling for a declaration of war against Britain. Dubbed “the young Hercules who carried the war on his shoulders,” Calhoun played a leading role in the War of 1812, from fundraising to military organization. After the Treaty of Ghent was signed, Calhoun devoted himself during the “Era of Good Feelings” to better preparing the military for future conflicts. These efforts impressed James Monroe, who appointed Calhoun Secretary of War in 1817.

Calhoun also devised a plan for the deportation of Native Americans west of the Mississippi River. Calhoun’s proposal, which was killed by the House, recognized Native American groups as individual nations, a notion Jackson would fail to acknowledge through his “Trail of Tears” removal policy years later.

Calhoun’s political prominence saw a major boost following the presidential election of 1824. Because all of the 1824 presidential candidates hailed from the same party, their vice presidential pick was critical in distinguishing themselves from one another. With no candidate managing a majority in the Electoral College, John Quincy Adams became the sixth president through the “Corrupt Bargain” and brought Calhoun along as his veep. Though Calhoun’s Southern roots would help the New England-bred Adams in theory, their politics were too inherently at odds. Calhoun “jumped ship” and ran with Jackson in 1828. However, he would behave no more favorably under the new commander-in-chief.

Soon after the election was won, Calhoun anonymously authored “South Carolina Exposition and Protest,” a document which rejected the said “Tariff of Abominations” that President Jackson largely supported due to its promise of protectionism. Calhoun’s ardent pro-Southern economic policy fuelled his defiance that, coupled with the Petticoat Affair, culminated in his estrangement from President Jackson.

When Jackson named Van Buren his likely running mate for the 1832 election, Calhoun more openly championed the constitutional theory of state nullification, “the legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.” On November 2, 1832, Calhoun’s home state adopted the Ordinance of Nullification, which deemed the tariff unconstitutional.

Calhoun resigned as vice president on December 28, 1832, just months before Congress passed the Force Bill, enabling Jackson to crush the uprising in South Carolina. Calhoun, alongside Clay, brokered a compromise that ended the Nullification Crisis soon after. However, questions regarding the constitutionality of nullification and secession lingered. While secession would later be discredited as a constitutional right, nullification would be reinvoked even in modern times, famously cited (and rejected) in an effort to prevent the integration of Southern schools.

Calhoun served in the Senate until his death in 1850. His dreams of the presidency—much like those of Henry Clay, who famously declared, “I’d rather be right than president”—were never realized, but his presence in government shaped the period. As Margaret Coit wrote in the introduction to her biography of Calhoun:

Despite the absence of all these hallmarks of political power, from the beginning to the end of his forty year political career, Calhoun arrested public attention and influenced public opinion … [H]e was never predominant in influence, but there was never a time when he was not a major player who had to be taken into account.

Whether he was promoting the annexation of Texas or rejecting the Compromise of 1850, Calhoun, as Merrill D. Peterson once articulated, “triangulated the destiny of the nation”—for better or for worse.

Olivia Fitzpatrick is an intern at the National Constitution Center. She is also a rising junior at the University of Pennsylvania, majoring in English and minoring in Legal Studies.

]]>http://blog.constitutioncenter.org/2016/06/vice-president-profile-john-c-calhoun/feed/0Constitution Check: Is the transgender rights case a big test for the bureaucracy?http://blog.constitutioncenter.org/2016/06/constitution-check-is-the-transgender-rights-case-a-big-test-for-the-bureaucracy/
http://blog.constitutioncenter.org/2016/06/constitution-check-is-the-transgender-rights-case-a-big-test-for-the-bureaucracy/#respondFri, 10 Jun 2016 14:25:31 +0000http://blog.constitutioncenter.org/?p=43365Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how a new case involving a transgender student is shaping up as a significant test of judicial deference to bureaucratic views.

THE STATEMENTS AT ISSUE:

“The Education Department and the Justice Department created an ambiguity [in the scope of Title IX] where one never existed and replaced the term ‘sex’ with ‘gender identity.’ The implications are endless if Executive Branch agencies are permitted to rewrite statutes and regulations whenever they are able to manufacture an ambiguity no matter how novel it may be. Principles of federalism and separation of powers are at stake, and time is of the offense.”

– Excerpt from a filing in federal appeals court on June 7 by the Gloucester County (Va.) School Board, announcing its plan to appeal to the Supreme Court to test whether Title IX of federal civil rights laws protects transgender people against discrimination based upon their “gender identity.” The case will be filed at the Supreme Court by August, the board said.

WE CHECKED THE CONSTITUTION, AND…

With the vast growth of federal regulatory agencies, in the 1930s and 1940s, the idea spread that technical expertise was a good thing to have in government, and that it would be a hallmark of a professional bureaucracy, a “technocracy.” Courts apparently shared that view, and developed the idea that they should be generous in accepting what those agencies had to say about enforcing federal administrative law. That might be called the “doctrine of deference,” because it generally meant that judges would not second-guess too greatly what the agencies did in interpreting their own regulations.

The doctrine probably got its start in a case that grew out of controversy over price controls that the federal government had imposed in an attempt to hold down inflation during World War II. It began, it seems, with the Supreme Court’s 1945 decision in the case of Bowles v. Seminole Rock & Sand Co., involving price controls on crushed stone.

In that ruling, the Justices said the agencies themselves should have the primary opportunity to spell out what their own regulations mean, if those regulations are ambiguous. Here is what the opinion said: “The ultimate criterion [of what a regulation means] is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”

The court has followed that approach repeatedly, and did so most notably in a 1996 decision in the case of Auer v. Robbins. That decision came in the case of Labor Department interpretations of its own regulations dealing with overtime pay for public employees – in that case, police sergeants and lieutenants, who had some supervisory responsibilities. That ruling has grown in importance so much that the doctrine of deference to federal agency interpretations of their own rules now gets its name from that case: “Auer deference.”

The whole idea that judges should be strongly deferential to regulatory agencies, though, has been gaining critics for years, particularly with the intensification of business challenges to pervasive regulation of their day-to-day operations by the Washington bureaucracy. That resentment has also been encouraged by “smaller government” advocates, like Tea Party elements.

But the doctrine also has developed critics within the judiciary, on the premise that it undercuts the obligation of judges to interpret what federal laws are to mean, and how they are to be enforced, and thus intrudes on Article III’s allocation of power to the judiciary. Judges also have argued that agencies can unfairly surprise those that they regulate by switching their interpretations without consulting anyone.

“Auer deference” has been challenged most conspicuously by the Justice who wrote that decision in 1996: the late Antonin Scalia. Last year, Scalia argued simply that the concept should be abandoned. Three other Justices have joined in questioning it; Justice Clarence Thomas, one of those three, did so as recently as last month when the issue of the doctrine’s continued validity came up anew.

A new case that is on its way to the Supreme Court is shaping up as another, perhaps quite significant test of judicial deference to bureaucratic views. That is the case of a 16-year-old transgender student in a high school in Virginia, who sued when he was denied access to the boys’ restroom (the youth was identified as a girl at birth but identifies as a boy). The school board in Gloucester County is preparing to appeal to the Supreme Court to challenge a federal appeals court ruling that explicitly invoked “Auer deference” in reviewing the meaning of the federal civil rights law that outlaws discrimination “based on sex” – Title IX, enacted in 1972.

The U.S. Court of Appeals for the Fourth Circuit concluded in the Gloucester County case that it had a duty to accept the interpretation of the federal Education Department that the phrase “based on sex” in Title IX reaches discrimination based on “gender identity” and that the protection extends to restroom access.

In announcing its plans to appeal to the Supreme Court, the school board said explicitly that it would challenge the Circuit Court’s deference to federal education officials. It noted the criticism of the doctrine by members of the Court, and warned that continued adherence to the doctrine would mean violations of federalism – that is, the right of state and local government to manage education themselves – and separation of powers. The school board is contending that education officials invented themselves the idea that the word “sex” was not limited to biological sense, and then went further and invented the idea that it applies to transgender discrimination based on “gender identity.”

The planned appeal, the school board added, will also argue that the bureaucracy’s interpretation of Title IX poses a major threat to “the dignity and freedom of bodily privacy.”

If the Supreme Court takes on the case, it would appear that there is no way the Justices could decide the controversy without first saying whether the broader interpretation of Title IX was the kind of public policy view to which the courts did owe “Auer deference.” It would take the votes of only four Justices to grant review of the case, and of that issue. It is already apparent that there are Justices who will be arguing for that review.

]]>http://blog.constitutioncenter.org/2016/06/constitution-check-is-the-transgender-rights-case-a-big-test-for-the-bureaucracy/feed/0Podcast: Marijuana and the Constitutionhttp://blog.constitutioncenter.org/2016/05/podcast-marijuana-and-the-constitution/
http://blog.constitutioncenter.org/2016/05/podcast-marijuana-and-the-constitution/#respondThu, 12 May 2016 19:08:48 +0000http://blog.constitutioncenter.org/?p=43019Marijuana was first outlawed nationally by the Marijuana Tax Act in 1937. Since 1970, it has been classified an illegal Schedule 1 drug under the Controlled Substances Act, listed alongside LSD, heroin, and other narcotics.

But in 1996, California became the first state to allow the use of marijuana for medical purposes, starting a cascade of changes at the state level. As of May 2016, 24 states and D.C. have legalized medical marijuana; four states—Colorado, Washington, Oregon, Alaska—and D.C. have also legalized recreational marijuana. In November 2016, more states, including Nevada and Maine, are slated to vote on the issue.

Joining We the People to explore the constitutional issues at stake are two leading experts in the field.

Douglas Berman is the Robert J. Watkins/Procter & Gamble Professor of Law at The Ohio State University Moritz College of Law.

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Please also subscribe to Live at America’s Town Hall, featuring conversations and debates presented at the Center, across from Independence Hall in beautiful Philadelphia.

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Despite our congressional charter, the National Constitution Center is a private nonprofit—we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

]]>http://blog.constitutioncenter.org/2016/05/podcast-marijuana-and-the-constitution/feed/0Could Texas secede from the United States, if it wanted to?http://blog.constitutioncenter.org/2016/05/could-texas-secede-from-the-united-states-if-it-wanted-to/
http://blog.constitutioncenter.org/2016/05/could-texas-secede-from-the-united-states-if-it-wanted-to/#respondMon, 02 May 2016 09:45:19 +0000http://blog.constitutioncenter.org/?p=42810In less unique election years, little to no national attention is given to statewide party conventions, where state party leaders and activists meet to discuss various issues, put forth a platform, and conduct other official state party business. Earlier this month however, the Colorado GOP state convention made national headlines after Ted Cruz swept the delegate allocation that was determined at the convention – without a popular election.

More recently, some attention has shifted to the upcoming Republican state convention in Texas, which will take place May 12th-14th. While the allocation of delegates from Texas to the GOP national convention was determined in the state’s March 1st primary, the emerging controversy surrounding the convention is about a debate over a pro-Texas secession plank to the party platform.

Earlier this year, 270 county conventions took place across Texas, and at least 10 counties passed resolutions to adopt a pro-secession platform. Texas GOP party officials fear that this support and momentum will force them to hold an official vote at the state convention on whether to include a pro-secession plank in the state GOP platform.

While one-in-three Texans think that the state has the right to secede, a vast majority of those polled would chose to stay in the United States if they were voting on the issue. Activists submitted to the White House a petition for Texas secession with over 100,000 signatures in 2012, and they have recently tried other political means to advance their movement.

Pro-secession activists are inspired in part by Texas’ history and are aggrieved by what they see as misconduct by the federal government. Before 1836, Texas was a Mexican province, but seceded for various reasons, including a slavery ban in Mexico and geographical proximity to and important trade relations with the United States. After existing as the independent Republic of Texas for 9 years, Texas was ultimately admitted as a state in 1845, which precipitated the Mexican-American War.

Today, pro-secession activists lament various actions by the federal government that “meddle with the lives, liberty, and property of the people of Texas”. While secession is scoffed at by mainstream Texas politicians and by the GOP party establishment, Texas’ current suit against the Obama administration’s executive actions on immigration makes similar complaints about putative burdens that the federal government is foisting upon the state.

Of course, the debate over whether states can secede from the United States was officially put to an end by the Civil War. During his first Inaugural Address, President Abraham Lincoln declared that “no state, upon its own mere notion, can lawfully get out of the Union…in view of the Constitution and the laws, the Union is unbroken”.

After the war, the Supreme Court endorsed Lincoln’s view on the constitutionality of secession. In 1868 Texas was a party to a case before the Court, Texas v. White, where the Court ruled that “when Texas became one of the United States, she entered into an indissoluble relation.” The Court put to rest any 10th amendment claims that states retain the right to leave the Union as they please, as Chief Justice Salmon Chase wrote that the Constitution, “in all its provisions, looks to an indestructible Union.”

Despite this, pro-secession activists point to the Texas state constitution as a legal justification for secession, deny the legitimacy of the 1868 Supreme Court ruling, and draw inspiration from the Declaration of Independence.

Back in 2012, the National Constitution Center’s constitutional literacy adviser Lyle Denniston wrote for us about the Texas secession debate, and the possibility that Texas could leave the United States if it had permission from the other 49 states.

Dennistion said Texas v. White made voluntary secession with permission impractical without a constitutional amendment granting the government the power to let Texas go.

“In order to overrule Texas v. White by constitutional amendment, a secession proposal would have to modify the very Preamble of the Constitution, in which the nation’s people created ‘a more perfect Union,’ and would have to wipe out the guarantee in Article IV of a ‘republican form of government’ in each state,” he said.

]]>http://blog.constitutioncenter.org/2016/05/could-texas-secede-from-the-united-states-if-it-wanted-to/feed/0Today in History: The Confederate Constitution is approvedhttp://blog.constitutioncenter.org/2016/03/looking-back-at-the-confederate-constitution/
http://blog.constitutioncenter.org/2016/03/looking-back-at-the-confederate-constitution/#respondFri, 11 Mar 2016 10:55:39 +0000http://blog.constitutioncenter.org/?p=31723On March 11, 1861, delegates from the newly formed Confederate States of America agreed on their own constitution. Here is a look at this little-known third constitution that controlled the lives of about 9 million people for a short period of time.

Much of the Confederate Constitution mirrored the Constitution of the United States as it existed at the time, with bigger differences in the matters of slavery and states’ rights.

In 1860, there were more than 9 million people, including 3 million slaves, living in the states and territories that would leave the Union, compared with 22 million people outside those areas.

The document was drawn up and approved just a week after Abraham Lincoln became president of the United States. There were seven southern states that had seceded at the time, and a total of 11 would secede and join the Confederacy officially. (Missouri and Kentucky were also considered members, but didn’t officially secede from the Union.)

At first glance, much of the Confederate document was taken directly from the U.S. Constitution.

But there were several passages related to slavery that were much different. The Confederate version used the word “slaves,” unlike the U.S. Constitution. One article banned any Confederate state from making slavery illegal. Another ensured that slave owners could travel between Confederate states with their slaves.

The Confederate constitution also accounted for slaves as three-fifths of a state’s population (like the U.S. Constitution did at the time), and it required that any new territory acquired by the nation allow slavery.

In other ways, the Confederate constitution was closer to the Articles of Confederation, which preceded the U.S. Constitution–it was focused on states’ rights.

The Confederate preamble begins, “We, the people of the Confederate States, each State acting in its sovereign and independent character…”

The U.S. Constitution starts with the more familiar, “We the People of the United States, in Order to form a more perfect Union…”

Confederate states had the ability to impeach federal officials, collect more taxes, and make treaties with each other under certain circumstances. They could also create lines of credit.

When it came to elected officials, the Confederate constitution limited the president to one, six-year term in office in a person’s lifetime. The vice president didn’t have term limits.

The president also had use of the line-item veto in budget matters.

Senators and representatives served under circumstances that were very similar to rules in the U.S. Constitution.

It also had a Bill of Rights, lumped together with rules about Congress. (Most of the rights in the U.S. Constitution’s original Bill of Rights were incorporated.)

One additional right stated that the government couldn’t impair “the right of property in negro slaves” to owners.

The Confederate Congress operated in a similar fashion to the United States. But the Confederate Congress couldn’t pass legislation about amendments. That role was reserved for the states.

Cabinet members could also answer questions on the floor of Congress.

The Supreme Court system was also very similar to the one used by the United States. But it was never formed during the Civil War because of the government’s instability.

The Confederate Congress met for six sessions during the war. Political parties didn’t form in the Confederacy, but there were political factions in the electorate.

Jefferson Davis, a former U.S. senator, served as the Confederate president.

Scott Bomboy is the editor in chief of the National Constitution Center.

“Ask Jeff” is back! Listeners submitted their questions about the Constitution to Jeffrey Rosen, president and CEO of the National Constitution Center, on Facebook, on Twitter, and here on our blog, Constitution Daily.

After due consideration, the We the People staff selected the following questions for discussion:

Is Senator Ted Cruz eligible for the presidency?

Was the Second Amendment intended to protect an individual or collective right to bear arms?

Do the Fifth and Fourteenth Amendment due process clauses prohibit the government from imposing safety regulations on workers, such as limiting the amount of time that truck drivers can drive in one shift?

Do license plate trackers at border crossings constitute unreasonable searches or seizures in violation of the Fourth Amendment?

This show was engineered by David Stotz. It was moderated and produced by Nicandro Iannacci. Research was provided by Lana Ulrich, Josh Waimberg, Nicandro Iannacciand Danieli Evans. The host of We the People is Jeffrey Rosen.

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“The Clean Power plan raises serious federalism concerns. It is well-established that it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the usual constitutional balance of federal and state powers….The states’ authority over the intrastate generation and consumption of energy is one of the most important functions traditionally associated with the police powers of the states….EPA’s interpretation of [the Clean Air Act] intrudes on that traditional state authority. By arrogating to itself the authority to choose favored and disfavored industries in the domestic energy field, EPA undermines the states’ authority to independently assess the intrastate need for new power facilities, their economic feasability, and rates and services.”

– Excerpt from a legal filing in the Supreme Court on January 26 by 29 states urging the Justices to block the Obama administration’s new Clean Power Plan that seeks to divert energy generation from plants fueled by coal and oil to plants powered by wind or solar, which EPA believes will benefit the environment by sharply reducing emissions of carbon dioxide.

WE CHECKED THE CONSTITUTION, AND…

It is a dominant theme of America’s modern history, at least since the New Deal days in the 1930s, that more and more government power continually shifts to the national government from the state governments. In recent years, that has been true especially in the energy field, with the growth of a closely interconnected electric grid managed by very large regional operators under the eye of the Federal Energy Regulatory Commission.

The Supreme Court newly validated that trend in a decision just this week, upholding a federal plan to pay big factories and large retail stores – who normally get their power from state-regulated sources – for reducing their use of energy during peak demand periods. That approach ties them much more closely to the federally regulated national electric grid and the wholesale energy market.

At the same that this shift has been occurring, however, the Supreme Court has been giving strong support to a new “federalism revolution,” a rediscovery of the states’ sovereign authority to manage their own affairs without federal superintendence or interference.

The court is well aware that the states had sovereign authority before the Union was ever formed in the 1790s. They assumed that status after the break with England in 1776, and they retained a good deal of that sovereignty under the Constitution – and, indeed, saw it explicitly safeguarded by the Tenth Amendment – usually thought of as the “states’ rights” amendment.

The Tenth Amendment got short shrift during President Franklin Roosevelt’s New Deal, with the robust growth of national authority in overcoming the Great Depression. But that amendment has gained new respect in the Justices’ revived effort in recent years to protect the dignity and stature of state governments.

Now, in another development this week in the nation’s energy sector, more than half of the states – 29 of them – have turned to the Supreme Court to protect them against what they are calling a new “power grab” by the federal Environmental Protection Agency. A plea for states’ rights, for federalism, is a key part of a new challenge they have mounted to one of the Obama administration’s most ambitious efforts to protect the environment from carbon pollution.

EPA’s new initiative, which it calls the “Clean Power Plan,” is a program to steadily reduce the energy industry’s dependence of power plants that burn coal or oil as fuel, and to shift to the “cleaner” process of generating electricity by the wind or the sun.

To bring about that switch, EPA’s plan would set specific limits on carbon dioxide emissions from power plants, and it would impose on states the initial duty to fashion plans to meet those reductions. If the states fail to do so, EPA has made clear it will step in and perform the task.

The 29 protesting states filed a federal court challenge against the new Power Plan right after it was unveiled by EPA last October. The federal appeals court in Washington, D.C., has set a speeded-up schedule for reviewing the plan’s legality under the Clean Air Act, but that court has refused to put the plan on hold while that review goes forward. The review would proceed well into the summer, it now appears, even under an expedited court schedule.

Arguing that the energy industry is already forced to begin making plans to obey the new Power Plan, including sizeable investments in new modes of electricity generation, the challenging states have turned to the Supreme Court to seek immediate relief.

They have laid before the Justices a fervent claim that the Clean Air Act does not even come close to authorizing EPA to adopt such a plan, with its “commandeering” of state governments as part of the implementation of the plan.

But they have sought to buttress that Clean Air Act argument with a sweeping claim based upon the Tenth Amendment concept of federalism, in the sense of protecting state prerogatives in areas that have traditionally been governed by state law and state regulatory rules. The states contended that they are being coerced into becoming a part of the new enforcement approach, and that this intrudes on their fundamental sovereign power to regulate electricity generation and transmission inside each state’s borders.

The two arguments are each aimed at a key figure on the Supreme Court. Justice Antonin Scalia has become one of the EPA’s strongest critics on the court, and has a strict view of that agency’s duty to stay within the limits of what Congress has assigned it to do. Justice Anthony M. Kennedy is the strongest champion on the court of state sovereignty, and the federalism argument obviously is designed to stir concern about the Power Plan.

This dispute will unfold over the next week or so, as the court ponders whether to get involved at this stage, or to take no action to interfere with the Power Plan as it gets reviewed by the federal appeals court in Washington. Sooner or later, though, the Justices themselves almost certainly will have to weigh in on the plan’s legality – if, of course, the plan survives the inauguration of a new president next January.